Lack of commonsense makes the law an ass

IT WOULD have been a fairly easy exercise to determine who should get the six Western Australian Senate seats based on the 2013 count, irrespective of the lost 1372 votes.

But Justice Kenneth Haynes’s hands were tied. There was simply nothing in the Commonwealth Electoral Act to enable him to do anything other than order a new election.

The upshot will be a critical difference in the Senate.

In Senate elections, votes are counted by entering them into a computer. The computer then sorts through the preferences, printing out the results as successive candidates are excluded.

Only above-the-line votes were counted at the recount in WA. Below-the-line votes are double-entered making miscounts near impossible.

In the recount (re-entering the 1.1 million votes into the computer), it was found that 14 votes out of 1.1 million had been miscounted – an error rate of 0.001 per cent. Quite astonishing really.

Normally it would not matter. But this was a perfect storm for the Australian Electoral Commission. The 14 votes changed the way the preferences flowed – from the Shooters to the Christians. And instead of the preferences dribbling down to the Palmer and Labor candidate, they dribbled to the Sports Party and Greens instead.

Moreover, it was found that 1372 ballot papers had been lost and therefore could not physically be included in the recount.

However, it is a fairly easy exercise to find out precisely how those 1372 ballot papers were marked because they were counted and recorded electronically in the first count.

The Australian Electoral Commission has done the exercise: Liberal 886; Labor 164; Greens 112; Animal Justice 21; and then 11 parties each with fewer than 15 votes.

Given that only 14 votes out of 1.1 million were miscounted in the first count, the likelihood that any of those 1372 votes had been miscounted is so small (about 1 in 10,000) as to be discounted. The likelihood that enough of them (more than 14) had been miscounted to affect the result is so utterly remote (about 1 in 100 million) that good sense would say ignore it.

Given the preference flows from the 886 Liberal votes, that would have resulted in the Palmer and Sports candidates getting the last two seats. Unpopular, yes, but that should have been the result.

Moreover, it would have been fairer to the four candidates who were indisputably elected – three Liberals and one Labor.

But the highly detailed and prescriptive Commonwealth Electoral Act made no provision for such a rational and sensible outcome. Justice Haynes, quite properly, applied the law.

Twenty or 30 years ago most statutes would contain a section reading something like: “ . . . or such other order as the court deems just and equitable in all the cirsumstances”, or “ . . . .such other order that court sees fit”.

These discretionary clauses were not applied willy nilly or capriciously. A body of law and principles (called equity) has built up determining how such clauses should be applied.

But no, legislatures increasing think they know it all and pesky unelected judges should get less and less discretion: mandatory sentences; no review of refugee cases; strict procedures for election and so on.

So we move from the old adage of the common law — that the law is the embodiment of commonsense — to Mr Bumble’s adage that the law is an ass.

But, Legislatures cannot think of everything. There are more things in heaven and earth than are dreamt of in their philosophy – such as 1372 ballot papers going missing.

The upshot will be critical. In a new election it is likely that the Coalition will get fewer votes than at the 2013 poll, and probably lose one of its three seats. It is also likely that Labor will get more first-preference votes, enough to secure a second seat.

Also, given the dismay at the election of six micro-party candidates Australia-wide, a micro-party candidate is much less likely to win a seat. A few months of exposure of them since the election will make voters more wary this time. It will put the Greens in a better position. The Greens have usually won a seat in Western Australia in the past.

That will change the complexion of the new Senate critically.

In a Senate with either the WA initial count or the recount, the 33 Coalition senators could have joined with six conservative micro-parties to pass legislation. And join with just five of them to block any motion to embarrass the government with calls for inquiries and the like.

After a new WA count, however, the Coalition will most like need all the conservative micro-party Senators and genuine independent Nick Xenophon to get legislation through. Herding cats will look simple by comparison.

It is a “good” result for the progressive side of politics, but that does not make it fair.

The great irony of all this, is that increasing the size of the Senate from 10 senators per state to 12 and the imposition of the mark-one-box-only above-the-line voting were both brought in by a conspiracy between the major parties in the mid-1980s to make life easier for themselves in the Senate.

Each thought that getting three senators from six at a half-Senate election was an easier ask than getting three from five. With three each, they would shut the minor parties out.

Little did they know then that their primary vote would plummet so far over a couple of decades.

Each major party thought in the 1980s that getting full control of voters’ preferences would help them.

Little did they know then that the minor parties would conspire back and convert full control of preferences to their benefit.

The voting system cries out for change.
This article first appeared in The Canberra Times on 22 February 2014.